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Somerestorativeelementsinanunusualsentence

The RJC notes the sentence handed down in the North Gauteng High Court in the matter of a case of rape as reported on inBeeldand inPretoriaNews on 13 May 2015. The basic facts of the matter are:

• A rape conviction and sentence of a 63 year old man who was appealing both these aspects from the magistrate’s court

• The victim was prepared to accept significant compensation and did not insist on a custodial sentence being imposed

• Even though the magistrate accepted that the facts comprised substantial and compelling circumstances to deviate from the required minimum sentence he imposed 7years imprisonment instead. This was apparently on the grounds of his interpretation of the Criminal Procedure act, 1977, which he understood to make provision for this type of compensation only in terms of matters involving loss or damage to property

• The court of appeal overturned the sentence and imposed the basic terms of compensation as a condition of suspended sentencing, although it halved the amount that the victim had originally demanded. On the basis of the judgment by the High Court, there is quite a lot we still don’t know about this matter:

• What actually happened

• The harm suffered by the victim

• How the originally proposed compensation of a vehicle and monthly amount was arrived at and what the reasons on the part of the victim were for requesting these terms specifically.

We do not know if any form of dialogue took place or if any other basis was used for calculating this. There does not appear to be any explicit assessment by either the trial or the appeal court about the risk that the offender posed to society. It seems that in view of his age and medical condition both courts concluded that he posed very limited risk.

This is a very significant consideration that is often overlooked, with courts imposing custodial sentences in matters where the person does not represent a significant risk.

The original proposal by the victim and offender, and the endorsement of the concept by both the magistrate’s court and the appeal court indicates that a custodial sentence is not the only sentence that will satisfy a victim or that will serve the purpose of denouncing unacceptable behaviour.

It calls into question again what would have been achieved, either for the victim or society, if the sentence of 7 years imprisonment had been implemented. There are other tools that can be used to denounce wrongful behaviour and provide a sense of justice for victims. All things considered, it is positive that the court of appeal recognised the value of compensation and a non custodial sentence. Given the significant monetary value, there is a risk that it will be perceived as only being available to the wealthy.

However, it must be remembered that the basic terms of the sentence were agreed to by the victim and offender; if the circumstances and resources had been different, the terms agreed to would also have been different.